LEGAL CHALLENGES TO NUCLEAR WEAPONS FROM AOTEAROA/NEW ZEALAND

by Kate Dewes

Abstract

In June 1987, New Zealand became the first Western-allied state to adopt legislation banning nuclear-armed and powered warships from its territory. This article outlines the history of how and why this happened, and some of the consequences.

Well-organised public campaigns in New Zealand opposed to Western nuclear testing in the South Pacific gradually forced successive governments to adopt a more independent foreign policy, epitomized by the 1973 challenge to the legality of French atmospheric nuclear testing at the International Court of Justice (ICJ) or World Court. Subsequent physical resistance by New Zealanders to visits by allied nuclear-armed and powered warships led the way to adoption of the nuclear-free policy by David Lange government in 1984. Crude allied harassment, such as the French atrocity of sinking the Greenpeace flagship Rainbow Warrior in Auckland harbour, ensured that the policy became law. New Zealand emerged from this struggle with a new sense of identity and pride as an independent small South Pacific state.

Empowered by experience, the New Zealand anti-nuclear movement took advantage of the end of the Cold War, and pioneered a global citizens. initiative which challenged the legality of nuclear deterrence in the ICJ. Though not decisive, the resulting Advisory Opinion in 1996 inspired several new international campaigns which are using the law to generate the political will to achieve an enforceable global treaty incorporating a plan for the elimination of nuclear weapons. The article ends by assessing why what has been dubbed the 'Kiwi Cure' originated in New Zealand.

Introduction

With the placing on the statute book of the New Zealand Nuclear Free, Disarmament and Arms Control Act in June 1987, Aotearoa/New Zealand1 came of age. Although treated with barely-concealed fury by most of its Western allies, it won admiration and respect from many non-aligned states for being the first and only Western-allied state to legislate against nuclear weapons, and thereby renounce nuclear deterrence. Why did this small South Pacific island state risk the ire of its nuclear allies by challenging their 'ultimate' security system? And why did it resort to legal avenues to do so?

This article gives a brief overview of how successive New Zealand governments responded to strong public opposition to nuclear testing in the South Pacific by allies, which led to the development of a more independent foreign policy between the 1950s and 1970s. It outlines precursors to the nuclear-free policy, including the 1973 contentious case on the legality of French atmospheric nuclear testing at the International Court of Justice (ICJ) or World Court, and opposition to visits by allied nuclear-armed and powered warships. After describing how the nuclear-free policy became law, it traces how, with the end of the Cold War, New Zealand became the launch pad for a global citizens. initiative which challenged the legality of nuclear deterrence in the ICJ. Finally, some thoughts are offered on why what became known as the 'Kiwi Cure' originated in New Zealand.

From Colonisation to Nuclearisation

The signing of the Declaration of Independence in 1835 by some Maori leaders of Aotearoa was the first statement to other sovereign states that its indigenous people intended to be recognised as a separate nation state. This was confirmed five years later when the Treaty of Waitangi was agreed by two separate nations.2 At the time there were approximately 3,500 Pakeha (Europeans), and the Maori population (around 250,000 when the Europeans first arrived) had been reduced by 40 per cent as a consequence of diseases and the tribal wars fought with muskets in the 1820s. By 1900 the Maori population had dropped to 40,000.3 The British claimed power over all the inhabitants and instituted the Westminster system of government, thereby undermining the Treaty's commitments. It is often overlooked that for at least nine-tenths of Aotearoa's history, there was a system of Maori sovereignty.4 Then the British colonisers sent New Zealand troops (including Maori) to the Boer War, and later lost a fifth of the 103,000-strong New Zealand force in World War I. The close relationship between Australians and New Zealanders was cemented in the carnage at Gallipoli.

Between 1920 and 1950, New Zealand relied on the British system of collective imperial security and dependence on a 'great' power. The first Labour Prime Minister, Michael Savage, summarised these sentiments in 1939:

Behind the sure shield of Britain we have enjoyed and cherished freedom and self-government. Both with gratitude for the past, and with confidence in the future, we range ourselves without fear beside Britain. Where she goes, we go. Where she stands, we stand. We are only a small and young nation, but we are one and all a band of brothers, and we march forward with a union of hearts and wills to a common destiny.5

Tacit Support for Nuclear Weapons: 1945-1972

For almost thirty years after World War II, New Zealand was an unquestioning supporter of Western security concepts based on adversarial alliance systems such as the North Atlantic Treaty Organisation (NATO), the South East Asian Treaty Organisation (SEATO) and the Australia/New Zealand/United States (ANZUS) Treaty. The threatened use of nuclear weapons was implicit in these alliances, as a 'necessary evil' for the defence of Western values. Viewed by the USSR as the 'piccolo of the Western orchestra', New Zealand dutifully voted within the United Nations (UN) in support of the United Kingdom (UK), United States and France, rarely raising an independent voice.

The earliest instance was New Zealand's opposition to granting the UN Security Council the power of the veto, led by Labour Prime Minister Peter Fraser at the San Francisco conference to establish the UN in 1945.6

As a vociferous supporter of the League of Nations and a strong participant in the formation of the UN, New Zealand also advocated "that all the powers joining the United Nations would agree to submit any quarrels to the International Court of Justice. and be bound by its decisions". 7 New Zealand frequently called on the UN General Assembly (UNGA) to avail itself of the advisory function of the ICJ to help resolve disputes, such as the treatment of Indians in South Africa and the question of Palestine.

With the signing in 1951 of the ANZUS Treaty, New Zealand consolidated its close relationship with Western states, and accepted the 'protection' of its so-called 'nuclear umbrella'. Throughout the 1950s, New Zealand supported Western nuclear testing in the South Pacific and its UNGA voting pattern reflected the belief that nuclear arms control was an arcane matter best left to its nuclear allies.

In 1956, when Marshall Islanders petitioned the UN Trusteeship Council, New Zealand voted against a resolution calling for an International Court of Justice (ICJ) advisory opinion on the legality of atmospheric nuclear testing. 8 Shortly before its first nuclear tests on Christmas Island in 1957, the UK withdrew its acceptance of the compulsory jurisdiction of the ICJ to preclude the possibility that the Court might issue an injunction barring them.9 New Zealand accepted the British assurance that the tests were perfectly safe, and supplied transport, observation and monitoring facilities. Prime Minister Holland supported the UK because its aim was "the security of the Commonwealth and the free world, and our safety lies in that security".10

However, in response to growing opposition - led by Quakers and supported by the National Council of Women, Maori Women.s Welfare League, Federation of Labour, National Council of Churches and others - Holland claimed New Zealand would support a complete test ban when others did the same. Later that year the new Labour Prime Minister Walter Nash, although elected promising to "oppose all further tests of nuclear weapons", sent a frigate to assist in monitoring atmospheric conditions in conformity with an earlier commitment. New Zealand supported the UK in a 1958 UNGA resolution linking any permanent cessation of testing to reducing all armed stockpiles, conventional and nuclear.

However in 1959, responding to rising public concern following the British H-Bomb tests in Australia, New Zealand voted to condemn nuclear testing while the UK, US and France voted against, and Australia abstained. This significant shift illustrated Nash's personal commitment to nuclear disarmament and a more independent foreign policy. As a pacifist in the early 1920s, he had helped organise 'No More War' demonstrations and International Peace Days.11 Later as Prime Minister he travelled widely and met Soviet and West German leaders, calling for the 1958 de facto moratorium on nuclear testing to be formalised into a permanent ban.

In 1960, National Party Prime Minister Keith Holyoake expressed 'profound dismay' at the resumption of US and Soviet nuclear testing. He had earlier stated that New Zealand ".... did not contemplate the acquisition of nuclear weapons nor would she become a storage base for them...."12 However, his government voted against the 1961 UNGA resolution declaring the use of nuclear weapons contrary to the laws of humanity.

In 1963, the New Zealand branch of the Campaign for Nuclear Disarmament (CND) presented the biggest petition (80,238) since the women.s franchise in 1893, calling for a Southern Hemisphere Nuclear Free Zone (SHNFZ) in a campaign with the slogan 'No Bombs South of the Line'. In an attempt to appease both Western allies and domestic critics, the government reiterated that its security depended on "the deterrent effect arising from the possession of nuclear weapons by our allies" 13 and affirmed a commitment to a South Pacific zone, but did nothing to further it.

Pressure Builds to Use the ICJ: 1970-74

France carried out 44 atmospheric nuclear tests at Moruroa and Fangataufa between 1966 and 1974. An outraged New Zealand public, increasingly aware of the health and environmental effects and in solidarity with smaller Pacific Island states, formed coalitions across society and explored several visionary initiatives with the government. In 1964, a CND member proposed "a well-planned protest against the test, including sailboats, rafts, or even small aircraft placed in the testing area by private organisations and manned by crews from several countries...." Although dismissed at the time as unrealistic, it sowed the seeds for later government and citizen actions.14

In 1970, Auckland CND petitioned the government to work with other states to request the UNGA to obtain an ICJ advisory opinion on the legality of the French action, suggesting Australia, Japan and Latin American nations bordering the Pacific as potential co-sponsors. This time, persistent calls for international action did result in a more assertive stance. In August 1971, New Zealand signed the first South Pacific Forum communique which unanimously opposed the tests and urged France to abide by its obligations under international law. In June 1972, the Australasian Prime Ministers made a joint statement to the Conference on Disarmament. A month later, New Zealand and Peru co-sponsored a resolution against radiation and contamination from the tests at the Stockholm UN Conference on the Human Environment, and in August, New Zealand introduced a similar resolution at the UN Seabed Committee meeting.

Creative protest action ensured that nuclear testing became an election issue in 1972. Auckland CND launched another petition which amassed 81,475 signatures, and Peace Media organised an international Peace Fleet to sail to the test site. When the French Navy rammed one of the boats, the resultant worldwide publicity and growing international opposition helped embolden the Labour Party to make resolute anti-nuclear election promises.15 Opposition Leader Norman Kirk, who had publicly supported the creation of a nuclear weapon free zone since the CND petition of 1962, received a spontaneous ovation after delivering this challenge during a fiery Parliamentary debate:

If we were the Government we would not send a yacht. The country has four expensive frigates. Let them run up the New Zealand flag... Let us take a frigate up there, and let us say to Members of Parliament on both sides of the house, .If you want to stand up and be counted, now is your chance!. As Government...we will create a situation in which the whole country can unite behind the Government, instead of being forced to act to make the Government do the job it was elected to do.16

Prior to the 1972 general election, the Foreign Ministry had considered using either the advisory opinion or contentious case route at the ICJ. 'Soundings' in the UNGA revealed minimal support for an advisory opinion, and there were fears that France could use its Security Council veto to prevent such an approach - and even if the Court gave a favourable opinion, it would not bind France to any course of action.

In January 1973, Australia's new Labor government told France that "the tests would be unlawful", and warned that if France did not stop testing it would "institute proceedings in the ICJ to restrain the conducting of future tests in the Pacific...." Prime Minister Kirk also announced that New Zealand was seriously considering joining Australia, but saw the ICJ as only one avenue of protest. He hoped to host conferences for the Pacific region, and for Commonwealth Foreign Ministers, to press for accession by all states to the Partial Test Ban Treaty, and to promote a Comprehensive Test Ban Treaty and a South Pacific Nuclear Free Zone (SPNFZ).17

New Zealand requested an environmental impact assessment from France and a declaration that "the conduct by the French Government of nuclear tests in the South Pacific region that give rise to radioactive fallout constitutes a violation of New Zealand's rights under international law, and that these rights will be violated by any further such tests". Australia sought a similar declaration and an injunction to stop further tests. On 22 June 1973, the ICJ ruled in favour and asked Australia and New Zealand to make written and oral arguments which they did. It ordered France to refrain from further testing while the case was before it. Kirk immediately announced that a frigate, with a Cabinet Minister on board, would sail to the test site to mobilise world opinion to help persuade France to comply with the ICJ's order.18

Kirk sent cables to leaders of one hundred countries seeking acknowledgment of the ICJ's decision. He reiterated the importance of the rule of law, especially in relation to security threats to small states. Within a week, he farewelled the HMNZS Otago on the official protest voyage saying:

We are a small nation but we will not abjectly surrender to injustice. We have worked against the development of nuclear weapons. We have opposed their testing anywhere and everywhere. .... No self-respecting nation with right on its side can meekly acquiesce to the intransigence of others. ... Today the Otago leaves on an honourable mission. She leaves not in anger but as a silent accusing witness with the power to bring alive the conscience of the world.19

France, having refused to appear, defied the ICJ.s order and, following another series of tests in 1974, announced it would test underground in future. When the final judgment came in December 1974 after an 18-month delay, the ICJ did not rule on jurisdiction and admissibility but decided that, as France had unilaterally undertaken to end atmospheric testing, it did not have to make a decision.

It would have been futile for New Zealand to challenge France's violation of the ICJ order in the Security Council because of its veto. New Zealand chose instead to use the frigate protest to garner international attention and support. Although the legal case did not achieve due process, Kirk's moralistic rhetoric was formalised through these initiatives. The population of less than three million united behind the government's courageous stand against nuclearism.

Emerging Nuclear Allergy: 1974-1984

The heady days of the Kirk Labour government were short-lived. Kirk died suddenly in August 1973, before the ICJ's verdict. However, with his oratory, passion and courage he set a precedent for similar bold actions by Prime Minister David Lange in the 1980s. Aware that "New Zealand is too small to frighten anyone, but politically it is big enough to be able to give a constructive lead....", Kirk had persisted with implementing a more independent foreign policy.20 Alongside the anti-nuclear initiatives, he had withdrawn troops from South Vietnam; established diplomatic relations with the Democratic Republic of Vietnam and China; increased economic aid to the Third World, and stopped sporting contacts with South Africa. Kirk's successor Wallace Rowling promoted a SPNFZ via a UNGA resolution which sought endorsement of the idea and further consultations on the subject.

With National's re-election in 1975 under Robert Muldoon.s conservative leadership, New Zealand foreign policy reverted to a more subservient, pro-ANZUS position. One of Muldoon's first acts was to mothball the SPNFZ initiative, and to welcome visits by US nuclear powered and armed vessels. In 1971, the previous National government had imposed a ban until the US agreed to accept liability in the event of an accident and widespread contamination. Despite US legislation agreeing to cover compensation in 1974, the Labour government had maintained the ban.21

During the late 1970s, public anger at Muldoon's defiant promotion of visits by US and UK nuclear warships spilled over into waterborne protests by the Peace Squadron, attracting international media interest. The Labour opposition tried unsuccessfully to introduce legislation prohibiting the entry of such warships through the establishment of a nuclear free zone in New Zealand and the South Pacific. These initiatives foundered because the US would not accept a non-nuclear ANZUS. The bills did not even pass the first reading stage in Parliament.22

Nevertheless, the ship visits helped spur the resurgence in the peace movement. People took to the streets demanding a ban, and in 1980 began declaring homes, schools and local councils nuclear free zones. A network of over 300 small neighbourhood peace groups mushroomed around the country. They were not bound by political ideology or a 'party line', and took whatever creative action was appropriate for their particular style. Their running costs were minimal as there were few paid staff: most activists worked from home within their local community and took responsibility for lobbying their local politicians. This resulted in widespread public participation, and created a form of accountability in nearly every electorate to which all political parties became extremely sensitive.

Opinion polls reflected the growing awareness in the community. In 1978, 51 per cent of the population supported visits by US nuclear-powered ships with 39 per cent agreeing to the use of US nuclear weapons in New Zealand's defence.23By 1983, 46 per cent approved visits of nuclear-armed warships while 40 per cent opposed them. 24 Prior to the 1984 election, only 30 per cent supported visits with a clear majority of 58 per cent opposed,25 and over 66 per cent of the population lived in locally declared nuclear free zones. In all these polls there was a clear gender and age difference, with women and youth strongly opposed to the visits. When three of the four main political parties adopted strong anti-nuclear policies in response to this shift in public opinion, the emerging New Zealand nuclear allergy appeared to have become endemic.26 International developments, such as breakdown of the Geneva Disarmament talks and US moves to initiate the Strategic Defence Initiative or 'Star Wars', helped strengthen this anti-nuclear sentiment. The issue now became how to treat the allergy.

The 'Kiwi Cure': 1984-1987

In July 1984, the Labour Opposition introduced a nuclear-free New Zealand bill calling for the prohibition of nuclear weapons from its territory. It attracted support from a few courageous National politicians who threatened to cross the floor to vote in support of Labour. Rather than face defeat on such a crucial foreign policy issue, Muldoon dissolved parliament and called a snap election. During the election campaign, the Labour Party pledged to pass nuclear free legislation, promote a SPNFZ and renegotiate the ANZUS Treaty to accommodate this. The policy was seen as a test of democratic process and of New Zealand's sovereignty.27 It found favour nationwide, and Labour's landslide victory owed much to the anti-nuclear vote.

In Australia, a Labor government with a comparable anti-nuclear policy was elected. However, after a rushed review of the policy, the government concluded that it was unrealistic, and opted instead to continue the previous government's policy of welcoming its allies. nuclear warships. New Zealand was expected to follow suit. For the next few years the New Zealand government came under intense pressure from Australia and other Western allies, who feared the spread of what they dubbed the 'Kiwi disease' to other important states such as the Philippines, Japan and Denmark. Consequently the law was not actually passed until June 1987, nearly two years after a SPNFZ had been signed in Rarotonga.

At the same time, with the resurgence of Maori nationalism, the population was undergoing an identity crisis. Were they citizens of Aotearoa, a small South Pacific state, tied to the region by geography and shared ancestry, or of New Zealand, still clinging to the apron strings of Mother England? Was it time to assert some independence from Western allies, including Australia, and to stand beside other vulnerable island states which also saw their security threatened by nuclearism? Economically more secure, was it again New Zealand's role to take the nuclear issue to the world stage?

New Zealanders looked to their new Prime Minister David Lange to promote the anti-nuclear policy globally. In 1962, as a young lawyer, he had witnessed the man-made aurora across the northern night sky after a US high altitude nuclear test from Christmas Island 5000 kilometres away. "I was arrested with awe as the sky pulsated with these brilliant shafts of light.. and ..couldn't reason away the chill sweat of dread."28 Lange was a charismatic, witty orator who spoke with strong moral force and understood the importance of underpinning a potentially fragile policy with the law.29 Moreover, he had earned the peace movement's respect when he defended activists and Labour politicians in the domestic courts following high-profile Peace Squadron actions against visiting nuclear-powered, and possibly armed, vessels in the late 1970s.

Inevitably the policy, and politicians, came under intense pressure from both the Western camp and New Zealand Foreign Affairs and Defence officials, many of whom still clung to the doctrine of nuclear deterrence. Courageously, Lange expounded on the myths of deterrence to the international media via his celebrated 1987 Oxford Union debate, the UNGA and the Conference on Disarmament.30 Before departing for Oxford he said:

This will change everything - there.ll be no going back. We'll cut ourselves adrift economically, militarily, culturally . the umbilical cord to our past has been severed. New Zealand will never be the same again... we were hedgehog New Zealand, curling ourselves up into a frightened little ball and praying the outside world wouldn't run over us. Tomorrow we stand up in the full glare of the international spotlight and say: "This is who we are, this is what we believe, and damn the consequences!"31

In speeches throughout the US, he highlighted New Zealand's geographical isolation and argued that the policy was neither pacifist nor isolationist. Affirming the people's right to democratic process, he asked:

If a country like New Zealand cannot say no to nuclear weapons, what country could ever say no to nuclear weapons? If a country like New Zealand cannot be secure in the absence of a nuclear deterrent, what country can ever be safe without it?32

He cleverly linked New Zealand and the US as "Western, democratic and liberal in outlook", pointing out:

We believe in the same basic freedoms; the principle of the individual, the equality of all before the law, freedom of conscience, the right of all people to take part in the running of government and its institutions.33

Despite demotion from US ally to 'friend', curtailment of military cooperation under ANZUS, threats to trade with the US and UK, attempts to destabilise the Labour government and diplomatic ostracism from the Western group, the government held firm. Prime Minister Lange was assisted by a massive mobilisation of the peace movement in New Zealand and the US.34 Ironically, the sinking in 1985 by French government agents of the Greenpeace flagship Rainbow Warrior in Auckland Harbour and the 1986 Chernobyl nuclear power plant explosion helped strengthen the government's resolve, and undoubtedly swung the remaining waverers behind it.

An opinion poll commissioned by the 1986 Defence Committee of Enquiry confirmed that 92 per cent now opposed nuclear weapons in New Zealand and 69 per cent opposed warship visits; 92 per cent wanted New Zealand to promote nuclear disarmament through the UN, while 88 per cent supported the promotion of nuclear free zones.35 Interestingly, the poll also showed that the majority of the population wanted New Zealand to continue to be a member of ANZUS while maintaining the ban on nuclear ship visits. However, the US made it abundantly clear that, if the legislation proceeded, its defence obligations under ANZUS would be effectively terminated.36 Also, as Lange noted about the Rainbow Warrior atrocity, "the leaders of the West expressed not a moment's outrage about terrorism directed by a government against opponents of nuclear deterrence".37

When the Nuclear Free Act was finally passed in June 1987, New Zealanders witnessed with pride a new phase in the struggle for an independent foreign policy. The Act, claimed by its proponents as the 'Kiwi Cure', formally established New Zealand territory and coastal waters as a Nuclear Free Zone, and uniquely banned visits by both nuclear-powered and armed vessels.

The US and UK were particularly angered by Clause 9 of the Act, which stated:

The Prime Minister may only grant approval for the entry into the internal waters of New Zealand by foreign warships if the Prime Minister is satisfied that the warships will not be carrying any nuclear explosive device upon their entry into the internal waters of New Zealand.38

This directly challenged their policies of 'neither confirm nor deny', and separated New Zealand from countries such as Japan and Denmark, which left room to judge whether or not nuclear allies were respecting their anti-nuclear policies.

By the 1987 election, five of the six most significant political parties had adopted the nuclear-free policy. Again, Labour.s re-election could be partially attributed to the success of this policy. Prime Minister Lange acknowledged the importance of the public's role in maintaining its integrity:

There is no doubt that the anti-nuclear movement is, in New Zealand, a mainstream cause. Successive governments have been helped to be honest or kept honest by the commitment of sincere people who started out as the shock troops to shift the centre of gravity and who remain vigilant as the trustees of what has now become a New Zealand characteristic.39

The Act included provision for an eight-member Public Advisory Committee on Disarmament and Arms Control (PACDAC) as formal 'trustees' of the policy.40 So far, it is the only such body in the world. It has the statutory responsibility to "advise the Minister of Foreign Affairs on such aspects of disarmament and arms control matters as it thinks fit; advise the Prime Minister on the implementation of the Act, and to publish from time to time public reports" in relation to the above. From 1987-90, PACDAC advised government on the formulation of a consistent policy by scrutinising UNGA voting, reviewing membership of military alliances and agreements, and activities within US bases. For example, whereas New Zealand used to vote with the US on 70 per cent of the UN disarmament resolutions, by 1988/89 this was only 27 per cent.41

The Struggle over Nuclear Deterrence: 1987-1990

However, on the major issues relating to nuclear deterrence, New Zealand continued to oppose resolutions calling for the non-use and first-use of nuclear weapons, negative security assurances and a Convention on the Prohibition of Use of Nuclear Weapons. The Ministry's Explanations of Vote revealed an ongoing preoccupation with nuclear deterrence.42 Lange candidly confirmed this powerful stranglehold by the bureaucracy on the policy process:

Left to themselves, our diplomats would certainly have surrendered the nuclear-free policy. Their perspective was the perspective of the State Department, Whitehall, and every other foreign ministry whose government counted itself part of the Western Alliance. The test of membership of the alliance was belief in the doctrine of nuclear deterrence. As New Zealand found out, there wasn't any other test. Being a democracy wasn't enough, being well disposed towards NATO and the United States wasn't enough. You had to subscribe to deterrence to be in the alliance, and to prove it, you had to share in its risks.43

There were at least three instances where Ministry officials included positive references to nuclear deterrence in international Ministerial speeches in order to undermine Lange's position. One was when Foreign Minister Russell Marshall addressed the Conference on Disarmament in March 1988. With hindsight, Marshall described this as his worst political mistake.44 Lange later recounted how he publicly forced Marshall to withdraw what was perceived to be a fundamental alteration in the nuclear free policy.45

Lange acknowledged the pressure he endured and, with remarkable frankness, called for ongoing public and Labour Party support for his anti-nuclear stand:

I can tell you that when we took office in 1984 it was taken for granted by the government's advisers that we would change the anti-nuclear policy. They had no doubt about it. They just assumed that when we were confronted with what they called the realities of global power politics we would back off. When after several months it started to sink in that we were serious, they started to get heavy. They told me our trade in Europe depended on our surrender to the doctrines of nuclear preparedness. It is not easy to be told all the time by people who are advisers to the government that what you are doing is wrong and dangerous. It is possible to doubt. It is possible to feel alone. There are times when there is a conflict between the policy of the party and the reality of government. We allow for the practicalities of government. We make choices. We make trade-offs. We sometimes reach our goals by a route which is circuitous.46

During 1988.1990, PACDAC encouraged the government to support an initiative by a retired Christchurch magistrate, which asked the government to initiate a request through the UNGA for the ICJ to give an advisory opinion clarifying the legal status of nuclear weapons. Lange, though interested, declined. Years later, he justified his decision by saying that his speech to the Conference on Disarmament, the US television interviews and the Oxford Union Debate had much more 'intensity, advocacy and significance' than any UN vote. New Zealand had taken the maximum number of limited arms control measures and, in terms of political reality, the time was not right. There was not sufficient support from other countries, and New Zealand had alienated most of its traditional friends. However, if he had been Prime Minister in the post-Cold War period, he would have taken the risks and run with it.47

Just prior to the 1990 general election, political expediency forced the National Opposition to adopt Labour's anti-nuclear policy. Their Defence spokesperson, Don McKinnon, resigned in protest at this policy shift.48 In 1992-93, as Foreign Minister, he was at the forefront of moves to appease the US administration by attempting to change the Act to allow visits by nuclear-powered warships as the price for a reactivated ANZUS Treaty. This failed, and by the mid-1990s anti-nuclearism was firmly entrenched within the New Zealand psyche.

New Zealanders Pioneer the World Court Project: 1986-1996

New Zealand campaigners (including the author) persisted with the idea of obtaining an advisory opinion from the ICJ. Exploiting the improved climate for disarmament initiatives following the end of the Cold War, in May 1992 the World Court Project (WCP) was given its international launch in Geneva, led by an unprecedented coalition of three leading international citizen organisations: the International Peace Bureau, International Physicians for the Prevention of Nuclear War, and the International Association of Lawyers Against Nuclear Arms. Through the mechanism of a resolution in the World Health Assembly in May 1993, support was generated among particularly the 110-nation Non-Aligned Movement (NAM), which sponsored a UNGA resolution later that year requesting an advisory opinion from the ICJ on the question: Is the threat or use of nuclear weapons in any circumstance permitted under international law? However, heavy intimidation from the NATO nuclear weapon states prevented a vote.

In 1994, the National New Zealand government, bowing to strong public pressure, broke ranks with its Western allies as the only member to vote in support of the NAM's re-tabled UNGA resolution. New Zealand further demonstrated its insubordination at the ICJ Oral Proceedings in November 1995, when Attorney General Paul East argued in a powerful statement that any threat or use of nuclear weapons would break international law.

During resumed French testing in the Pacific a few months earlier, Prime Minister Jim Bolger had criticised nuclear deterrence on French television, called for the elimination of nuclear weapons, and, again with Australia, reopened the 1973 ICJ contentious case against France. The ICJ rejected the request on technical grounds, mainly because the earlier case had dealt with atmospheric testing. The New Zealand government felt justified in having tried, in order to appease domestic public anger and build international pressure against France which stopped testing earlier than planned, and in due course closed the test site. This in turn helped generate the political will for the final push to establishing a Comprehensive Test Ban Treaty in 1996.49

ICJ Advisory Opinion on Nuclear Weapons: 1996

On 8 July 1996, the ICJ delivered a 34-page Advisory Opinion on the UNGA question. In a crucial subparagraph, the Court decided that a threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. The judges also unanimously agreed that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. Bolger hailed it as a 'tremendous victory, a watershed decision (which) vindicated the anti-nuclear crusade'.50 Almost immediately, he and Nelson Mandela signed a bilateral Disarmament Memorandum in Cape Town, South Africa, which included a proposal to establish a Southern Hemisphere Nuclear Free Zone.

Although the nuclear weapon states have tried to ignore the 1996 ICJ Opinion (which is not legally binding), it has become the authoritative legal underpinning for all subsequent initiatives to secure the abolition of nuclear weapons. For example, each year since then, the UNGA has adopted a resolution calling for its implementation through the immediate commencement of negotiations leading to the conclusion of a Nuclear Weapons Convention (NWC), an enforceable global treaty containing a plan for the abolition of nuclear weapons similar to the widely acclaimed one for chemical weapons. The European Parliament passed a similar resolution in 1997. A model NWC was drafted by citizen group experts and circulated by the UN. It has also been submitted to the US Congress in a resolution calling for negotiations to achieve a NWC.

In Western nuclear and allied states, anti-nuclear activists are using the Court's decision in high profile, ingenious 'civil obedience' non-violent direct action campaigns to expose their governments and challenge them to comply with the law. This in turn has helped force debate amongst some NATO states, Australia and Japan about how the opinion affects their defence policies.

Also, in June 1998 an informal coalition of seven influential 'middle power. states from 'across the blocs'. Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden - referred to the ICJ's Advisory Opinion in their 'New Agenda' initiative calling for the nuclear weapon states to commit to immediate practical steps to reduce nuclear dangers and commence negotiations to eliminate nuclear weapons. This group has become the leading force in nuclear disarmament, and is credited with saving the 2000 Non-Proliferation Treaty Review Conference from failure.

Why Aotearoa/New Zealand?

Before outlining the history of New Zealand's opposition to nuclear weapons, mention was initially made of the fact that, until the British negotiated the Treaty of Waitangi, Aotearoa had a strongly independent identity built on Maori sovereignty. It is also true that the revival of Maori culture and claims for redress about their loss of land coincided with the first organised New Zealand protests against nuclear colonialism, racism and exploitation in the South Pacific, directed at its former mother country and nuclear-armed allies.

When trying to assess why New Zealand has shown leadership on this issue, it should not be forgotten that a New Zealand physicist, Ernest Rutherford, launched the nuclear era with his discoveries at the dawn of the twentieth century (with vital assistance from the equally brilliant English chemist Frederick Soddy). As New Zealand's first Nobel Prize winner, awareness of the nature of radioactivity among the New Zealand public would probably have been proportionally one of the highest in the world. Also, around that time, many improvements in civil society were being pioneered in New Zealand, such as votes for women and laying the foundations of a welfare state. With a very small population (still less than 4 million citizens in a land area comparable to England, Wales and Scotland), it is perhaps the optimum size for an active, responsive democracy. The relatively small number of parliamentarians (120) are unusually accessible to the electorate, aided by a free mail service to Parliament. The .Kiwi spirit. of individualistic improvisation and independent thought was stimulated by both the tiny population and geographic isolation - which in due course meant that, notwithstanding the ANZUS Treaty, it was distanced from the Cold War blocs. Last but not least, New Zealand became a relatively wealthy, developed country, so it was less vulnerable to economic coercion than many other small states of comparable population size.

Recourse to the UN and its judicial body had a powerful impact on the New Zealand psyche, and underpinned future initiatives by the anti-nuclear movement and government. The 1973 ICJ case against French tests put New Zealand's long tradition of promoting international law into practice, attracted media attention, and helped educate the public about it.

The constraints on small states taking international initiatives are well summarised here:

A small state is more vulnerable to pressure, more likely to give way under stress, more limited in respect of the politicial options open to it, and subject to a tighter connection between domestic and external affairs. In other words, the smaller the human and material resources of a state, the greater are the difficulties it must surmount if it is to maintain any valid political options at all, and in consequence, the smaller the state the less viable it is as a genuinely independent member of the international community.51

Taking these factors into account, the risks taken by both Labour governments in the 1970s and 1980s far outweighed potential benefits in terms of relationships with traditional allies and associated risks to economic prosperity. Nevertheless, both governments adopted radical stands because of the tighter connection between domestic and external affairs in such an active democracy, aided by the luxuries of geographic isolation and relative economic security. In the 1980s, the nuclear-free policy became the litmus test of the differing strategic interests between the large industrialised Western nations and the smaller, isolated Pacific Island states. Thereby New Zealand, as the first Western-allied state to introduce a totally anti-nuclear policy, used what has been described as the 'tyranny of distance' to its advantage.52

Moreover, the 1984-90 Labour administrations encouraged unprecedented access to decision-makers through PACDAC, and inclusion of citizen group representatives in UN government delegations (the author was on the New Zealand delegation to the third UN Special Session on Disarmament in 1988). Ideas flowed both ways, which helped build mutual respect, trust and confidence. Finally, the French government's terrorist bombing of the Rainbow Warrior - which coincided with the creation of the South Pacific Nuclear Free Zone - followed by the Chernobyl disaster, played into the New Zealand government's hands and ensured the passage of the Nuclear Free Act. With this track record, it was only a matter of time before the anti-nuclear movement found an opening for New Zealand's further use of the law, the UN and the ICJ to be extended to challenge nuclear deterrence doctrine head-on.

Conclusions

New Zealand's anti-nuclear stance was deeply rooted in its public concern over Western nuclear testing in the Pacific. Citizen groups, through vigorous campaigning, ensured that it became an election issue in the early 1970s. Ordinary citizens fed initiatives into the decision making process, and bolstered the Kirk Labour government in its efforts to mount the first legal challenge against France at the ICJ. It gained the support of Australia and other South Pacific states, and set an example of why small states show "high levels of support for international legal norms", especially when their security is threatened.53 New Zealand demonstrated that it had the confidence and political will, built around a clear public mandate, to show constructive leadership at the ICJ and in other international fora.

Labour Prime Minister Norman Kirk combined the qualities of a strong leader committed to an independent foreign policy with a belief in the responsibility of politicians to transform a powerful public concern into effective action. He initiated the transition from traditional dependence on Western military ideology to a more South Pacific-oriented identity and independent foreign policy.

The return of a National government in 1975 signalled reversion to the historical norm of subservience to the former colonial power and its allies going back to the Boer War. However, this provoked a resurgence of public pressure, which was applied in imaginative and very successful new ways. By 1984 this had not only forced the nuclear issue back to the top of the election agenda, but had swept a radical new Labour administration into power.

In the ensuing struggle to enact the nuclear free legislation, New Zealand emerged with a new sense of identity and pride as an independent small state. Again the policy change was led by a strong personality who espoused the virtues of democratic process. David Lange gained strength from overwhelming public support for the policy, and guided the country through the minefield of the Western backlash, whose crude ferocity paradoxically ensured that the policy became law.

With the end of the Cold War the New Zealand anti-nuclear movement, empowered by this remarkable track record, succeeded in mobilising international support behind the World Court Project. In 1996, the ICJ gave an Advisory Opinion which was strong enough in its implicit condemnation of nuclear deterrence to empower several new initiatives, which are leading the struggle to codify a plan for the elimination of nuclear weapons in an enforceable global treaty.

Dr Kate Dewes ONZM, a mother of three daughters, has coordinated the South Island Regional Office of the Aotearoa/New Zealand Peace Foundation from her home in Christchurch for over twenty-five years. She taught Peace Studies from 1986-1997 at the University of Canterbury. Between 1988-90, she served on the Public Advisory Committee on Disarmament and Arms Control, and was re-appointed in 2000. From 1992-96, she was an International Peace Bureau Executive member, and became a Vice-President in 1997. A pioneer of the World Court Project, she was on its International Steering Committee from 1992-96. Her PhD, awarded by the University of New England in Armidale, New South Wales, Australia in 1999, documents the history of the World Court Project. In the 2001 New Year's Honours, she was made an Officer of the New Zealand Order of Merit for her services to the peace movement.